Federal Sentencing

Published on: April 9, 2012

Conviction and 320 month sentence for engaging in and recording sexually explicit conduct with minors

In U.S. v. Lebowitz the defendant was charged with producing child pornography in violation of 18 U.S.C. §2251(a) and one count of attempting to entice a child to engage in unlawful sexual activity in violation of 18 U.S.C. §2422. Lebowitz began communicating with a15 year old boy male, K.S. on MySpace who falsely claimed to be 17 or 18 years of age. Lebowitz identified himself as a 47 year old doctor and began chatting on line with K.S. The conversations became sexual in nature, with the defendant sending K.S. a nude photograph of himself. At that point K.S. informed the defendant his true age of 15. After a day of chats, K.S. informed his mother, who called the defendant and told him to stop contacting her son. He did not and the mother contacted law enforcement. With the approval of the county sheriff office, K.S. continued corresponding with the defendant, informing the defendant his true age was 15. Meanwhile, the defendant expressed an interest in pursuing a sexual relation with K.S, a minor.

When the defendant arrived at K.S.’s house, he was arrested. After the arrest, the officer searched his car and found incriminating evidence including condoms, lubricant, and sleeping bags. The officer obtained a search warrant of the defendant’s residence where they seized a VHS tapes engaged in sexual activity with the defendant: one showed a male A.G. aged 16 and the other showing C.R. age 15.

The 11th Circuit upheld the denial of Lebowitz’ Fourth Amendment challenge to the car search. The court held that assuming the search violated the Fourth Amendment, the good faith exception applied because the officer “relied” on the binding 11th Circuit precedent at the time of the search, which allowed a search incident to a recent occupant’s arrest regardless of the occupant’s ability to access the passenger compartment.

Published on: March 23, 2012

Detention was reasonable when officers learned one of four men had a gun

by The Swartz Law Firm

In U.S. v. Lewis an 11th Circuit panel majority reversed the district court’s order suppressing evidence seized during an investigatory stop in this government interlocutory appeal. The district court in Florida federal court had granted defendant Lewis’ motion to suppress a firearm discovered after he and three associates were briefly detained by law enforcement officers in a parking lot at night. The district court had granted the motion to suppress, finding the detention was unreasonable in violation of the Fourth Amendment.

The trial court found the initial stop was unlawful because the officers lacked any particularized and objective suspicion that any of the four men had been engaged in or were about to engage in criminal activity at the time the officers ordered the men to stop. The men were in fact not engaged in criminal activity, standing by the car, looking in the trunk of the car, talking to each other, standing in the parking lot of a restaurant while it was open, failing to park their cars in the designated spots. When deputy sheriff approached the four he asked whether any of them were carrying guns. One of the four, McRae, told the deputy that he did have one and told the deputy where it was located. No one made a sudden move or attempted to reach for the firearm.

The deputies immediately drew they weapons and ordered all four to sit on the ground, turning the encounter into an investigatory stop. On the ground near the area where defendant Lewis was sitting, the officers found a semi-automatic pistol underneath a car and he was charged with carrying a concealed firearm in violation of Florida law. He was later charged with possession of a firearm by an illegal alien and filed a motion to suppress. The district court granted the motion finding the Terry stop was not lawful because the mere possession of a firearm did not justify the stop and detention, absent any suspicion of the four were involved in any criminal activity. It was not per se unlawful to possess a handgun or illegal to admit to carrying one.

Published on: February 27, 2012

Mandatory minimum sentence reversed because prior rape convictions did not qualify as violent felonies under the Armed Career Criminal Act.

by The Swartz Law Firm

In U.S. v. Owens the defendant pled guilty to being a felon in possession of a firearm and his sentence was enhanced because the district court determined his prior convictions under Alabama law for second degree rape and second degree sodomy qualified as a violent crime under the Armed Career Criminal Act (ACCA) which mandates a 15 year minimum sentence for any convicted felon who possesses a firearm after having been convicted of three violent felony or serious drug offenses. The ACCA is a commonly used in Florida federal courts.

A violent felony is defined as a felony which “has as an element the use, attempted use, or threatened use of physical force against the person or another; or is a burglary, arson, or extortion or involves explosives or otherwise involves conduct that represents a serious potential risk of physical injury to another.” The court first examines whether the offense is a violent felony under the elements clause, which provides that the offense has as an element the use of physical force; second, whether the offense is one of the enumerated crimes; and third, whether it is an offense under the residual clause. The residual clause analysis requires the categorical approach: examining the offense in terms of how the law defines the offense and not in terms of how an individual offender might have committed the offense.

Owens had ten convictions for Class B felonies of rape and sodomy in the second degree. Under the Alabama statutes for these offenses, it is a crime to engage in sexual intercourse with a member of the opposite sex who is less than 16 years, so long as the offender is no more than two years older than the victim. The district court enhanced the sentence under the ACCA and imposed a sentence of 293 months relying on the 11th Circuit precedent in U.S. v. Ivory, 475 F.3d 1232, which found these Alabama offenses were violent felonies because they involved the use of physical force against the person of another. In Owen’s first appeal to the 11th Circuit his sentence was affirmed under Ivory.

Published on: February 16, 2012

Sentencing enhancement upheld where defendant induced the Customs and Boarder Patrol to fire on his fleeing vessel

by The Swartz Law Firm

Defendant McQueen was convicted of attempted alien smuggling and failing to obey an order by federal saw enforcement to heave to the U.S. Customs and Boarder Patrol (CBP) vessel (18 U.S.C. 2237(a)(1). His sentence was enhanced by sentencing guidelines section 2L1.1(b)(5)(A) because a firearm was discharged by law enforcement in the course of the chase. In U.S. v Mcqueen the 11th Circuit Court of Appeals affirmed the sentencing enhancement.

McQueen’s boat was spotted by a CBP patrol plane heading west toward Palm Beach County, Florida. The boat matched the description of the Mary Carla, a 33-foot vessel suspected of smuggling aliens or drugs into the U.S. The CBP patrol boats attempted to interdict the Mary Carla about 11.8 nautical miles offshore by activating their blue lights, sirens, and spotlights, and commanded its operator to stop. The operator of the Mary Carla, McQueen, attempted to flee, turning east away from land and the CBP boats pursued him, firing illuminated warning shots, followed by the launching of four pepper balls into the boat’s cabin, and then more warning shots as McQueen continued to flee. The officers had to board the Mary Carla while it was still moving. Inside they found 14 aliens.

The enhancement applies if the discharge of the firearm was induced or willfully caused by the defendant. The issue was whether McQueen induced the CBP to discharge the firearm. Applying U.S. v. William where the court affirmed the application of the enhancement in a robbery context by concluding that the victim discharged his gun because he was induced by the defendant’s conduct. There the defendant attempted a carjacking by approaching a truck and pointing his gun inside. In response the occupant shot at Williams.

Published on: February 14, 2012

Third party’s failure to timely petition for adjudication of interest in forfeited property forecloses any opportunity for relief.

by The Swartz Law Firm

In this appeal Juanita Davenport challenged a final order of criminal forfeiture of $214,980 seized from a safety deposit box. In U.S. v. Davenport, the defendant and her codefendants were charged in the indictment with participating in a drug conspiracy. In addition, Davenport was charged with making a false statement to a federal agent. The indictment also sought to forfeit all the defendants’ interest in any property derived from or used to facilitate the commission of the drug conspiracy. The Davenport pled to the false statement charge and the government dismissed the forfeiture count against her.

One codefendant in her case pled guilty to drug distribution and agreed to forfeit his interest in the $214,000 of U.S. currency found in Davenport’s safe deposit box. A preliminary order of forfeiture was entered pursuant to Rule 32.2(b) and the government filed a notice of intent to dispose of the property, giving persons with interest 30 days to petition the court to adjudicate their potential interest in the property. A written notice of the forfeiture went to Davenport’s attorney advising him his client had 30 days from the written notice to file a petition of 60 days from the first day of the government’s publication of the notice on its website. After the 30 day period ran out, Davenport’s attorney petitioned the district court to adjudicate her interest in the forfeited currency. The district court dismisses the claim as untimely.

First, the 11th Circuit held that Davenport lacked standing to challenge the validity of the preliminary order of forfeiture. Her sole mechanism for vindicating her purported interest in the forfeited property was through the ancillary proceedings of 18 U.S.C. section 853 and Rule 32.2(c). Third parties may not relitigate the merits of a forfeitability determination.

Published on: February 7, 2012

Constitutional challenge to child pornography law failed but restitution order to victim vacated for proximate cause hearing

by The Swartz Law Firm

The defendants in U.S. v. McGarity were convicted following trial of engaging in child exploitation enterprise (CEE) 18 U.S.C. 2252A(g), receiving child pornography, 2252A(a)(2), and conspiracy to transport, receive, and possess child pornography, 2251(d)(1). The arrests grew out of a tip to Australian police of a child pornography ring operating through an internet newsgroup. After following the ring’s operation, the police learned that members of the newsgroup were allowed in only after completing certain tests designed to weed out law enforcement infiltrators. Members accepted into the newsgroup were given an encryption key allowing them to post texts, communicate with one another, and post child pornography.

The defendant challenged the constitutionality of 18 U.S.C. 2252A(g) on the grounds that certain terms in the statute are vague and overbroad, specifically the term “series” in “as part of a series of felony violations” and the phrase “three or more separate incidents.” Because the 11th Circuit rejected a vagueness challenge in U.S. v. Wayerski, 624 F.3d 1342 (11th Cir. 2010) the 11th Circuit disposed of this issue finding the same reasoning applied to this case. The statute survived a facial vagueness challenge because it was “clear what the statute as a whole prohibits” and is clear to a person of ordinary intelligence that 2252A(g)’s plain language prohibits “the commission of specified child pornography offenses that occur as a series of three or more separate instances, involving two or more victims, and three or more persons acting in concert with the defendant.”

One defendant challenged his sentencing enhancement for obstruction of justice. When agents sought execute a search warrant at the defendant’s home, the agent’s knock and announce request was ignored for about 30 minutes. After entry was finally gained, agents found him running a destructive wipe program on his computer. The Court upheld the sentencing guidelines enhancement for obstruction because the agents could not gain access to the defendant’s home with a search warrant and found the defendant running the wipe program. Proof was sufficient to warrant the enhancement.

Published on: January 25, 2012

Use of LimeWire for sharing child pornography could not justify federal sentencing guidelines enhancement.

by The Swartz Law Firm

In U.S. v. Vadnais, the 11th Circuit found that a file sharing program does not support a five level sentencing guidelines enhancement and reversed the sentencing. Another panel reached the same conclusion in U.S. v. Spriggs three days earlier involving the software Shareaza 2.0. Vadnais’ 240 months sentence for receiving child pornography included a guidelines enhancement under sentencing guidelines §2G2.2(b)(3)(B), which provides for the enhancement if the offense involves a distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value.” Vadnais obtained his illicit images over the internet by using LimeWire, a peer-to-peer file sharing software.

Analyzing the sentencing guideline issue, the 11th Circuit noted the commentary defines the 5 level enhancement of 2G2.2(b)(3)(B) as ‘any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit.” A “thing of value” can include the receiving child pornography “bartered” or in exchange for other child pornography. On this basis, the five level enhancement could apply to a defendant engaging in this activity. Vadnais argued that using the peer-to-peer file sharing software in a way that allowed others to obtain child pornography files from his shared folder did not support the enhancement.

The opinion spends time analyzing how peer to peer software works. The software networks are so named because they allow computers to communicate directly with each other without going through central servers. The software permits users to search for files located in the shared folders on other computers. When found, the requesting user can download the file directly from the other computer. The 11th Circuit found that the LimeWire software encourages users to share files. Its default settings make all files that a user downloads through LimeWire available to other LimeWire users to download.

Published on: January 16, 2012

No sentence enchancment for using a peer to peer file sharing program for downloading child pornography

by The Swartz Law Firm

In U.S v. Spriggs, Spriggs pled guilty to receipt of child pornography and sentenced to a five level enhancement for distribution of the illegal images for the receiving or expecting to receive something of value under USSG §2G2.2(b)(3)(B). Spriggs kept his child pornography collection in a peer to peer file sharing program called Shareaza 2.0. that could be accessed by other Shareaza users. Spriggs also downloaded the child pornography using the Shareaza program. The default settings on Shareaza 2.0 automatically provided for reciprocal sharing and required extra steps if a user did not want to share files with others using the program. The copy on Sprigg’s computer was rigged to allow peers to download files from his computer. The sentencing judge reasoned that Spriggs distributed the child pornography with the expectation that he would receive either more child pornography or could down load it faster. Law enforcement tried but was unsuccessful in its attempt to download the defendant’s files. There was no evidence showing that other users downloaded files from Spriggs child porn collection.
The 11th Circuit found that Spriggs’ distribution of child pornography is not enough to apply the 5 level enhancement under USSG §2G2.2(b)(3)(B). The distribution must be for the receipt or expectation of receipt of a thing of value. Though the 8th Circuit has applied the enhancement when using the file sharing network to distribute and access child pornography files, the 11th Circuit disagrees with that result. File sharing programs permit a person to access shared files on peer computers regardless of whether the person in turn shares files. Files are free. The mere use of a program that enables free access to files does not, by itself, establish a transaction that will support a five-level enhancement.

The 11th Circuit refused to follow an 8th Circuit’s decision finding that file sharing programs gave the defendant and expectation of value. Spriggs’ hope that a peer would reciprocate his generosity does not amount to a transaction conducted for “valuable consideration.” There was no evidence that Spriggs entered into a transaction with another user in which he shared his child pornography to gain access to another person’s child pornography. Without evidence that Spriggs and another made a promise with each other to share their illicit collection of images on the file sharing program, this was not a transaction whereby Spriggs expected to receive more pornography. The fact that Spriggs expected to receive faster downloading capabilities when he shared his files was a transaction between he and the software developer but this was not a “for value transaction” between Spriggs and other child porn collectors. There was no evidence that there was downloading priority given to Shareaza 2.0 users which would then allow someone like Spriggs to download child pornography faster. The record did not support a conclusion that Spriggs entered into a child pornography distribution transaction with the expectation he would receive a thing of value.

Published on: January 13, 2012

Bartering drugs for firearms will subject a Defendant to a sentence enhancement for possession of a firearm in furtherance of a drug trafficking offense

by The Swartz Law Firm

In U.S. v. Miranda, defendant Miranda negotiated with an undercover agent to purchase some firearms in exchange for a quantity of heroin. Miranda expressed a strong desire to obtain the firearms right away and he and the undercover agents agreed to exchange 4 handguns and 3 machine guns for 57 grams. Miranda would not even accept money for partial payment; He insisted on a firearm. Miranda was charged with several counts, most relevant was possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §924(c)(1)(A).

Miranda appeals the denial of his motion to dismiss and motion for judgment of acquittal, claiming that the possession of the firearms was not in furtherance of a drug trafficking offense. Miranda relied on Watson v. United States and United States v. Montano, two Supreme Court finding passive receipt of firearms did not further a drug trafficking offense. In each of those cases, the Supreme Court said that where the agents bartered for drugs by offering a firearm, it was the agents who were using the firearms and not the defendant.

The 11th Circuit did not agree, basing its decision on the plain language of the statute and other decisions of the Supreme Court and other circuits. The charge here involved the “possession” element, which the Supreme Court found was different in this context and “use” connoted more than mere possession. The language of 924(c)(1) makes it an offense for a person who “in furtherance of a drug trafficking crime, possesses a firearm. Earlier 11th Circuit decisions concluded that Congress sought to address the inherent dangers of having firearms in the proximate area of drug transactions when their presence was intended “to advance or promote the criminal activity.” Other 11th Circuit decisions have taken a broad view of how possessing a firearm is in furtherance of a crime to include any set of facts when the firearm helped, furthered, promoted or advanced the drug trafficking. The 2nd Circuit has agreed. “So long as the prosecution offers proof of some nexus between the firearm and the drug selling operation, the defendant is subject to enhancement of his sentence under section 924(c)(1)(A).”

Published on: January 6, 2012

No double counting for a sentence enhancment for possession of a gun in connection with a drug crime even though drug charges were dropped.

by The Swartz Law Firm

In U.S. v Webb, the defendant pleaded guilty to possessing a firearm as a convicted felon. He was arrested when he was stopped by police en route to meet an informant for a drug purchase. Police found cash and a 9mm semiautomatic handgun. Webb was charged with attempted drug possession and possession of a firearm by a convicted felon but in his plea to the gun possession counts the drug counts were dismissed.

This is how his sentencing guidelines were calculated by the sentencing court for this conviction. First, the court looked at USSG §2K2.1, the guidelines for the firearm offense. A four level enhancement applies for possession of the firearm in connection with a drug offense giving him a level 18. Under 2K2.1, if the defendant possessed the weapon in the attempted commission of another offense, the court must calculate the offense level under 2X1.1, which was the drug offense 2D1.1, and then apply the greater of the two offense levels. The fact that Webb was not convicted of a drug offense is irrelevant because the Guidelines commentary states that another offense means “any offense” regardless of whether criminal charges were brought or a conviction obtained. The drug weight raised the offense level to 26. Pursuant to 2D1.1(b)(1) there is a 2 level increase for possession of a firearm during a drug offense for a level 28. Because 28 was higher than the range calculated under 2K2.1, the range under 2D1.1 applied, giving him a range of 70 to 87. Webb challenged the 2 level increase for possession of the firearm because it amounted to double counting. He claimed that his range for the drug offense was higher because of the firearm enhancement.

The 11th Circuit upheld the enhancement and found applying 2D1.1(b)(1) did not result in double counting for the firearm. Double counting occurs when one part of the guidelines increase the punishment for a harm that has been fully accounted for by the application of another part of the guidelines. The plain language of the guidelines shows the Sentencing Commission intended for the enhancement to apply. Section 2K2.1 directs the court to apply the higher of the adjusted offense level as calculated under 2K2.1 and 2X1.1. Section 2X1.1 directs the court to apply the guideline for the substantive offense when it includes “attempt” crimes. Here, 2D1.1 applies to attempted drug possession. The guidelines require the court to apply 2D1.1 in its entirety including the gun enhancement. In fact, the guidelines commentary confirms that the enhancement was intended in the case of a firearm possession.